Page:Public Ledger v. New York Times (279 F. 747).pdf/1

Rh Harry Hess, of Cincinnati, Ohio, for plaintiff in error.

R. T. Dickerson, Asst. U. S. Atty., of Cincinnati, Ohio (James R. Clark, U. S. Atty., of Cincinnati, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

PER CURIAM. Yaffee was charged in the first count with selling intoxicating liquor in violation of the National Prohibition Act, and in the second count with maintaining a nuisance by keeping a place where such liquor was sold. He was acquitted under the first count and convicted under the second. Some of the assignments of error became immaterial by reason of this acquittal.

[1] There was no substantial prejudice from the reference made upon the trial to a former conviction. This indicated that the sale named in the first count was a second offense, as was there charged; but the court finally ruled that the conviction was too late to be a good basis for that conclusion, and excluded the evidence of the conviction. Discussion of the subject could not have been avoided, nor could the exclusion have been more complete.

[2] As to the other matters mentioned in the printed brief and oral argument, we find no instance of specific and definite objection or exception to the admission of testimony or charge of the court, where the point has been saved by such a specific assignment of error as our rules require. There is therefore nothing which we are required to consider, and upon examination of the record we feel no obligation to disregard these matters of form. If the jury believed the government’s witnesses, the conviction was inevitable.

The judgment is affirmed.

Appeal from the District Court of the United States for the Southern District of New York.

Suit in equity for infringement of a copyright by the Public Ledger Company against the New York Times Company and others. Decree for defendants (275 Fed. 562), and plaintiff appeals. Affirmed.

Certiorari denied 257 U. S. —, 42 Sup. Ct. 383, 66 L. Ed. —.